Argument preview: Religion, rights, and the workplace

March 24, 2014 Leave a comment

Argument preview: Religion, rights, and the workplace

Lyle Denniston Reporter

At 10 a.m. next Tuesday, the Supreme Court will hold ninety minutes of oral argument on the government’s authority to require private businesses to provide birth control and other pregnancy-related services to their employees under the Affordable Care Act.  Arguing for the challengers to the so-called “contraceptive mandate” will be Paul D. Clement, of the Washington, D.C., law firm of Bancroft PLLC.  Defending the mandate will be U.S. Solicitor General Donald B. Verrilli, Jr.   Each will have forty-five minutes of time, under an order issued Thursday expanding the time beyond the normal amount.  The consolidated cases are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius.

Background

For the first time since the broad new federal health care law partially survived its most sweeping constitutional challenge in the Supreme Court nearly two years ago, the Affordable Care Act comes up for a new test before the Justices.  This time, the Court will be examining whether the government may enforce against private businesses owned by religiously devout owners the requirement that employee health plans provide no-cost coverage for women’s pregnancy-related services, including birth control.

These services, required under the so-called “contraceptive mandate” in the Act and in government regulations, are not themselves in legal trouble:  the only issue before the Court at this point is which businesses can be ordered to provide the services to their female workers at no cost to them.

That issue will be debated by two of the legal gladiators who met in the last test at the Court of the Affordable Care Act:  Washington attorney Paul D. Clement, a former U.S. Solicitor General, and the current Solicitor General, Donald B. Verrilli, Jr.

 

There probably would be a significant loophole in the contraceptive mandate’s reach if the challengers win.  Some women’s rights groups have estimated that millions of women would be affected.  Female workers of the two companies involved and those of other religiously oriented companies would have to cover personally the cost of at least some of the birth-control services — unless the government were to set up a new program on its own to do so, which is a very unlikely prospect.

Thus, the two cases that the Court has combined for review set up a direct conflict between the interests of some employers against those of their female workers of child-bearing age.  The federal government is clearly on the workers’ side, but the lower federal courts have been divided on who should win.

The dispute only involves private businesses because religious groups, as such, are given an exemption by regulations the government has issued.  Even some businesses get exemptions, too, because their employee health plans have been “grandfathered,” but before long those, too, will actually have to provide the benefits at issue, or face heavy financial penalties.

At the level of their greatest potential, the two cases raise the profound cultural question of whether a private, profit-making business organized as a corporation can “exercise” religion and, if it can, how far that is protected from government interference.  The question can arise — and does, in these cases — under either the First Amendment’s Free Exercise Clause or under a federal law, the Religious Freedom Restoration Act, passed by Congress in 1993.

In a manner of speaking, these issues pose the question — a topic of energetic debate in current American political and social discourse — of whether corporations are “people.”  The First Amendment protects the rights “of the people,” and the 1993 law protects the religious rights of “persons.”  Do profit-making companies qualify as either?

Aside from whether corporations do have any religious rights, as such, the cases also raise the question whether the religious rights of their owners — real people, who undeniably can act according to their faith — are violated by the requirement that their companies obey the contraceptive mandate.  Ordinarily, in business law, corporations are separate from their owners, but the owners in these cases resist that notion, at least so far as the owners’ religious views actually shape the business of their companies.

No one doubts that the owners of the two companies have sincere religious objections to some forms of birth control or that their beliefs do counsel them to avoid any role in providing those services to their employees.  The companies and their owners do not have to convince the Court that that is what they believe — only whether that belief controls enforcement, or not, of the mandate.

One company is Hobby Lobby Stores, Inc., and a related company, Mardel, Inc.  Headquartered in Oklahoma City, the two companies are owned — through a trust — by members of the Green family.   Hobby Lobby is a chain of more than 500 arts-and-crafts stores across the country, with more than 13,000 employees.  Mardel is a chain of Christian book stores, with 35 outlets and about 400 employees.

The Green family members signed a formal commitment to run the two chains according to Christian religious principles — closing on Sunday, advertising their religious orientation, and playing religious music in the stores.   The owners and their stores do not object to every part of the contraceptive mandate, but they do object to the use of any drugs or intrauterine devices that — in the words of their lawyers — “end human life after conception.”

They have estimated that, if they follow their faith and violate the mandate, they face fines of about $1.3 million a day, or almost $475 million a year.  They believe that cancelling their health plan to avoid obeying the mandate would put them at a competitive disadvantage with other employers.   They do not believe that the government can force them to make such choices.

The other company is Conestoga Wood Specialties Corp., a company based in East Earl, Pennsylvania, that also has operations in other states, making wooden cabinets and wood specialty products.  It has about 950 employees.

The company is owned by members of the Hahn family, who are Mennonite Christians.  Their faith teaches them that it is wrong to take a human life and to prevent its creation through drugs and intrauterine devices  If the company or its owners were to violate the mandate to adhere to their beliefs, they estimate that they would face financial penalties of about $35 million a year.

Federal appeals courts ruled in conflicting ways.  The U.S. Court of Appeals f0r the Tenth Circuit decided that Hobby Lobby was likely to win its challenge because, even though it is a profit-making business, it can, indeed, act according to faith principles.  The U.S. Court of Appeals for the Third Circuit decided that neither the company, Conestoga Wood Specialties, nor its owners could claim First Amendment religious rights — because, it found, the corporation is incapable of doing so, and because the owners had chosen the corporate form for their business and it stands apart from their personal interests.

Petitions for certiorari

The federal government asked the Supreme Court to review the Hobby Lobby case, while the Hahn family and their woodworking company did the same in their case.  As offered to the Justices, the two cases together raise both the First Amendment religious rights question and the RFRA statutory issue, as to both the companies and their owners.

The First Amendment provides that no law may be passed, at any level of government, that prohibits “the free exercise of religion.”  RFRA provides that government agencies (only at the federal level, since the Act no longer applies at the state and local levels) may not impose a “substantial burden” on the religious exercise of “a person,” even if the law is one that everyone ordinarily must obey, unless the government can justify the burden to satisfy a “compelling government interest,” and only if it is the “least restrictive means” of doing so.  It does not specifically define “person.”

On November 26, the Court agreed to review both cases and consolidated them for review.

Briefs on the merits

Hobby Lobby Stores — whose name will probably provide the label for the case in history – argued aggressively in its merits brief that the federal government was pursuing “a misguided shell game” in which only the Green family has rights and the corporation suffers alone the burden of the mandate.   That, it contended, was a move to ”drive a wedge” between the family and its corporation.

The brief insisted that, if the Court uses the definition of “person” that is in the federal Dictionary Act, it would refer not only to natural persons, but to corporations, too.  And, under the ACA regulations at issue, the filing said, the government is seeking to force employers to provide specific contraceptives, not just “an exchange of money.”  It is the contraceptives, not their cost, that burdens the Green family’s faith and the principles of Hobby Lobby Stores and the related bookstore chain, the brief argued.

Saying that the Court must apply “strict scrutiny,” the most demanding test for the validity of a government mandate or program, the Hobby Lobby brief said that the government has “not come close” to satisfying that standard.  The official claims that the mandates support public health and women’s equality are so broad that they could never meet that test, the brief said.

The retail chains’ filing said that the government has come up at the last minute with another attempted justification — that is, that the mandate is part of a comprehensive scheme of providing health benefits to all.  But that notion, the brief said, is belied by all the exemptions the government has allowed.

Because the question that the government raised in its petition in the Hobby Lobby case was restricted to the scope of the Religious Freedom Restoration Act, the retail chains’ merits brief is confined to that issue.

The merits brief for Conestoga Wood Specialties and its owners deals with its claims under both RFRA and the First Amendment.  The filing begins with a defense of the Hahn family’s claim that its members choose to practice their faith through business activity, as well as in their personal lives.  “The corporate formality of a business is not determinative of whether religious exercise occurs in that business,” it contended.

But, if the family’s religious interests could be separated from the company, the brief went on, the company itself “exercises religion, too.”  Under state law, the corporate form may be used “to pursue all lawful purposes, without excluding religion,” Conestoga’s lawyers told the Court.  The Supreme Court, they added, “has never limited religious freedom to natural persons.”

Aside from arguing that the contraceptive mandate substantially burdens the religious rights of the Hahns and of their company, the brief said that Congress in passing the Affordable Care Act did not require that contraceptive services be included in employee health plans; that was added by the federal government in ACA regulations.

And, like Hobby Lobby, the Conestoga filing asserted that “strict scrutiny” is the only valid test to apply and that the government cannot show that it has a compelling interest in enforcing the birth-control mandate against religious objectors.  If the government is intent on assuring access to birth control, the brief said, it could either expand existing programs which provide that service or create new ones.

The Obama administration’s merits brief in Hobby Lobby focused on the RFRA claim, and its separate brief in the Conestoga case sought to answer claims under both RFRA and the First Amendment.

In each filing, the government made the same basic points:  profit-making businesses do not “exercise” religion at all, for purposes of either federal law or the Constitution; the mandate only applies to corporations and not to their owners and, in any event, corporations law treats the business separate from the owner; and, even if the mandate did have to satisfy a compelling government interest, it does so by assuring that female workers have access to an important health benefit as part of a comprehensive health insurance scheme.

The contraceptive coverage requirement, according to the government, is a neutral obligation that applies to profit-making businesses in general, and does not target any religious exercise.  The exemptions that have been provided for other businesses — those whose plans are “grandfathered” and thus do not immediately have to obey the mandate — will only exist in a phased sequence, and that alone is not enough to deprive the mandate of its neutral character, the U.S. brief said.

In passing RFRA, the brief contended, Congress did not intend to “uniquely disable the government by working a dramatic expansion” of the claims for exemption based on religious liberty.  Besides, it added, there has not been a single decision by the Supreme Court that struck down a federal law — or required an exemption to it — on the theory that that was necessary “to protect the rights of a for-profit corporation or of the owners, managers, or directors of the corporation.”

The government brief also made a religious liberty argument of its own.  It said that giving for-profit businesses the chance to obtain an exemption from federal laws based on religion would threaten “the special place of religious institutions in our society.”  Congress has often given religious bodies exemptions from laws, but it has always “drawn the line at for-profit corporations,” the brief said.

If Hobby Lobby and Conestoga are legally entitled to exemptions, Congress would be discouraged from providing exemptions for non-profit religious organizations “for fear that doing so would automatically entitle for-profit corporations to the same accommodation,” according to the government’s argument.

The briefs for the government also asserted that there actually is no burden on any religious exercise by owners or corporations, because the choice to use a birth-control pill or device would be made independently by the female workers covered by a health insurance plan.   The connection between those choices and the interests of the employer who finances the plan, the brief went on, is “too indirect” to make a legal difference.

The amicus briefs

If numbers of amici were to make a difference, there is no contest in these cases:  the government drew two dozen briefs in support, while Hobby Lobby and Conestoga are backed by five dozen filings.  There are two briefs that do not take a position on how these specific cases should be decided, but they take opposite positions:  a brief by professors of history and law argues that the Court has always treated corporations differently from natural persons, while a brief by a group of traditional religious organizations urges the Court to adopt an expansive view of the right to religious exemptions from public laws.

The boldest brief in support of the government takes a position that the government did not, urging the Supreme Court to strike down RFRA as an unconstitutional attempt by Congress to scuttle a Supreme Court decision requiring religious organizations to obey laws that apply generally.  That is a brief by a disparate group of advocacy organizations, including non-believers and survivors of clergy sexual abuse of children.

There is, on the corporations’ side, a brief by constitutional law scholars seeking to answer that constitutional challenge.  That brief contends that RFRA is a valid exercise of Congress’s legislative powers, and that nullifying the law “would threaten thousands of statutes that protect religious minorities.”

There are predictable allies on each side:  civil rights and women’s rights groups, liberal organizations, professors of various disciplines, and liberal lawmakers on the side of the federal government and the ACA, and traditional religious organizations and advocacy groups, conservative and libertarian entities, professors of various disciplines, and conservative lawmakers on the side of Hobby Lobby and Conestoga.

Analysis

If the legal territory the Court enters in these cases is not entirely new, it is also not well traveled.  The Court has sort of assumed since 1886 — without ever ruling flatly — that corporations are “persons” in a constitutional sense.  And, over time, it has filled in some of the gaps on what rights corporations are to have under the Constitution.  But it has never said, explicitly, that they are endowed with the right to freely exercise a religious faith.

These two cases give it the chance to do just that, if it is so inclined, and that would be a profound constitutional shift, with deeply uncertain implications.  It would, at a minimum, pave the way for businesses to choose whom they serve according to the identities of the customers and how those square with the religious preferences of the company.

But the Court need not go that far, even if it should lean toward ruling in favor of an exemption within the business world from the ACA’s contraceptive mandate.  It could decide that the Green family and the Hahn family have a right to exercise their religious beliefs in the way they run their business firms, and that this mandate intrudes on those rights.

Along the way, of course, the Justices would have to find a way around the conventional business law notion that corporations stand apart from their owners.  But they could do that with a very narrow definition of the rights of the owners of a company that is so closely held that it is essentially not a public corporation, except in name.  Again, though, that would grow out of the rights of the owners, not of the corporate entity itself.

The problem in anticipating a victory for religious owners, though, is that the focus in that analysis may fall too heavily on the owner’s interests, and insufficiently on the interests of the employees.  What is at stake on that side of the legal controversy is the interest of female employees in managing their personal lives and their reproductive health, with obvious implications for their ability to carry on their work lives and careers.

Just as there are Justices now on the Court who would, indeed, view this controversy through sympathetic eyes for business management, there also are Justices now serving who would certainly view sympathetically the claims of female workers of child-bearing age.

In these two cases, those two perspectives seem distinctly at odds, and the chances of finding common ground between them seem remote, indeed.

For example, the easiest way to rule for a religious exemption for businesses or their owners in this case would be to interpret the Affordable Care Act as not even authorizing the government to include birth control in the requirements for employee health plans.  That is an argument that the lawyers for the businesses here actually make.  But to rule that way would be to read the purposes of the statute’s coverage of preventive health services so narrowly as to ignore the realities of the health of women who work in offices, factories, and shops.

In terms of the legal foundations for a ruling, the Court might well go into this case hoping to avoid making new constitutional law, on the institutional premise that it should not decide a constitutional question unless it has no way to avoid it.

But it would be hard to base a ruling in this case solely on the scope of the Religious Freedom Restoration Act, because that Act is essentially designed to protect constitutional rights of religious liberty.  To know what that law does protect requires knowing what the Constitution embraces — either as to corporations, or as to their owners, or both.

Only one thing, perhaps, is certain as the argument in this case approaches: whatever the Court decides, it will not decide the fate of the Affordable Care Act.  The nation’s politics, and many of its legislatures (including Congress), are absorbed with debates over whether to keep the law, to amend it, to render it unenforceable, or to repeal it altogether.  None of that depends upon the outcome of this case.

The Court has not been asked to strike down any part of the law, and it almost certainly won’t volunteer to do so.  All that is at issue is who must obey the contraceptive mandate.

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15th Amendment: Right to Vote Not Denied by Race

February 15, 2014 Leave a comment
ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE

  Adoption and Judicial Enforcement

  Adoption .–The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment, aside from the provisions of Sec. 2, 1 left the issue of African American suffrage solely with the States, and Northern States were generally as loath as Southern to grant the ballot to African Americans, both the newly-freed and those who had never been slaves. 2 But in the second session of the 39th Congress, the right to vote was extended to African Americans by statute in the District of Columbia and the territories, and the seceded States as a condition of readmission had to guarantee African American suffrage. 3 Following the election of President Grant, the ”lame duck” third session of the Fortieth Congress sent the proposed Fifteenth Amendment to the States for ratification. The struggle was intense because Congress was divided into roughly three factions: those who opposed any federal constitutional guarantee of African American suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who were willing to settle for an amendment merely proscribing racial qualifications in deter mining who could vote under any other standards the States wished to have. 4 The later group ultimately prevailed.

  The Judicial View of the Amendment .–In its initial appraisals of this Amendment, the Supreme Court appeared disposed to emphasize only its purely negative aspects. ”The Fifteenth Amendment,” it announced, did ”not confer the right . . . [to vote] upon any one,” but merely ”invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” 5 But in subsequent cases, the Court, conceding ”that this article” has originally been construed as giving ”no affirmative right to the colored man to vote” and as having been ”designed primarily to prevent discrimination against him,” professed to be able ”to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words ‘white man’ as a qualification for voting, this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people. . . .” 6  

  Grandfather Clauses .–Until quite recently, the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the ”grandfather clause.” Beginning in 1895, several States enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirement. Unable because of the date to avail themselves of the exemption, African Americans were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited to register without taking any tests. With the achievement of the intended result, most States permitted their laws to lapse, but Oklahoma’s grandfather clause had been enacted as a permanent amendment to the state constitution. A unanimous Court condemned the device as recreating and perpetuating ”the very conditions which the [Fifteenth] Amendment was intended to destroy.” 7  

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916, with some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified ”sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” 8 The impermissible effect of the statute, said the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause, whereas African Americans, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.

  The White Primary .–Indecision was displayed by the Court, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied, 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees thereof. 12 When exclusion of African Americans was thereafter perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 This holding was reversed nine years later when the Court declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence it may not under the Fifteenth Amendment exclude African Americans from such elections. 14 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty, 15 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion of African Americans by the Jaybird Association, a county-wide organization which, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court. 16  

  Literacy Tests .–At an early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face and in the absence of proof of discriminatory enforcement could not be said to deny equal protection. 17 But an Alabama constitutional amendment the legislative history of which disclosed that both its object and its intended administration were to disenfranchise African Americans was condemned as violative of the Fifteenth Amendment. 18  

  Racial Gerrymandering .–The Court’s series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the Court found a Fifteenth Amendment violation in the redrawing of a municipal boundary line into a 28-sided figure which excluded from the city all but four or five of 400 African Americans but no whites, and which thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were decided under the equal protection clause, 21 and in City of Mobile v. Bolden, 22 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases, 23 a plurality of the Court sought to restrict the Fifteenth Amendment to cases in which there is official denial or abridgment of the right to register and vote, and to exclude indirect dilution claims. 24 Congressional amendment of Sec. 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however. 25  

Footnotes

[Footnote 1] Supra, pp. 1926-27. Of course, the equal protection clause has been extensively utilized by the Court to protect the right to vote. Supra, pp. 1892-1911.

[Footnote 2] W. Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 25-28 (1965).

[Footnote 3] Id. at 29-31; ch. 6, 14 Stat. 375 (1866) (District of Columbia); ch. 15, 14 Stat. 379 (1867) (territories); ch. 36, 14 Stat. 391 (1867) (admission of Nebraska to statehood upon condition of guaranteeing against racial qualifications in voting); ch. 153, 14 Stat. 428 (1867) (First Reconstruction Act).

[Footnote 4] Gillette, supra n., at 46-78. The congressional debate is conveniently collected in 1 B. Schwartz, Statutory History of the United States–Civil Rights 372 (1971).

[Footnote 5] United States v. Reese, 92 U.S. 214, 217 -18 (1876); United States v. Cruikshank, 92 U.S. 542, 566 (1876).

[Footnote 6] Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United States 238 U.S. 347, 363 (1915). A state constitutional provision limiting the right of suffrage to whites was automatically nullified by ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370 (1881).

[Footnote 7] Guinn v. United States, 238 U.S. 347 (1915).

[Footnote 8] Lane v. Wilson, 307 U.S. 268, 275 (1939).

[Footnote 9] See also supra, p. 120.

[Footnote 10] United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 11] Nixon v. Herndon, 273 U.S. 536 (1927).

[Footnote 12] Nixon v. Condon, 286 U.S. 73 (1932).

[Footnote 13] Grovey v. Townsend, 295 U.S. 45 (1935).

[Footnote 14] Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 15] Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948); see also Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949).

[Footnote 16] Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the opinions, see infra, p. 1945.

[Footnote 17] Williams v. Mississippi, 170 U.S. 213 (1898); cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1960).

[Footnote 18] Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d 336 U.S. 933 (1949). On congressional action on literacy tests, see infra, pp. 1946-47.

[Footnote 19] Supra, pp. 1902-11.

[Footnote 20]   364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).

[Footnote 21] E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973).

[Footnote 22]   446 U.S. 55 (1980).

[Footnote 23] On the issue of motivation versus impact under the equal protection clause, see supra, pp. 1815-20. On the plurality’s view, see 446 U.S. at 61 -65. Justice White appears clearly to agree that purposeful discrimination is a necessary component of equal protection clause violation, and may have agreed as well that the same requirement applies under the Fifteenth Amendment. Id. at 94-103. Only Justice Marshall unambiguously adhered to the view that discriminatory effect is sufficient. Id. at 125. See also Beer v. United States, 425 U.S. 130, 146 -49 & nn.3-5 (1976) (dissenting).

[Footnote 24] Id. at 65. At least three Justices disagreed with this view and would apply the Fifteenth Amendment to vote dilution claims. Id. at 84 n.3 (Justice Stevens concurring), 102 (Justice White dissenting), 125-35 (Justice Marshall dissenting). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982).

[Footnote 25] See Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, amending 42 U.S.C. Sec. 1973. The Supreme Court interpreted the 1982 amendments to section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), determining that Congress had effectively overruled the City of Mobile intent standard in returning to a ”totality of the circumstances” results test.

– See more at: http://constitution.findlaw.com/amendment15/annotation01.html#4

ABOLITION OF SUFFRAGE QUALIFICATIONS ON BASIS OF RACE

  Adoption and Judicial Enforcement

  Adoption .–The final decision of Congress not to include anything relating to the right to vote in the Fourteenth Amendment, aside from the provisions of Sec. 2, 1 left the issue of African American suffrage solely with the States, and Northern States were generally as loath as Southern to grant the ballot to African Americans, both the newly-freed and those who had never been slaves. 2 But in the second session of the 39th Congress, the right to vote was extended to African Americans by statute in the District of Columbia and the territories, and the seceded States as a condition of readmission had to guarantee African American suffrage. 3 Following the election of President Grant, the ”lame duck” third session of the Fortieth Congress sent the proposed Fifteenth Amendment to the States for ratification. The struggle was intense because Congress was divided into roughly three factions: those who opposed any federal constitutional guarantee of African American suffrage, those who wanted to go beyond a limited guarantee and enact universal male suffrage, including abolition of all educational and property-holding tests, and those who wanted or who were willing to settle for an amendment merely proscribing racial qualifications in deter mining who could vote under any other standards the States wished to have. 4 The later group ultimately prevailed.

  The Judicial View of the Amendment .–In its initial appraisals of this Amendment, the Supreme Court appeared disposed to emphasize only its purely negative aspects. ”The Fifteenth Amendment,” it announced, did ”not confer the right . . . [to vote] upon any one,” but merely ”invested the citizens of the United States with a new constitutional right which is . . . exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude.” 5 But in subsequent cases, the Court, conceding ”that this article” has originally been construed as giving ”no affirmative right to the colored man to vote” and as having been ”designed primarily to prevent discrimination against him,” professed to be able ”to see that under some circumstances it may operate as the immediate source of a right to vote. In all cases where the former slave-holding States had not removed from their Constitutions the words ‘white man’ as a qualification for voting, this provision did, in effect, confer on him the right to vote, because . . . it annulled the discriminating word white, and this left him in the enjoyment of the same right as white persons. And such would be the effect of any future constitutional provision of a State which would give the right of voting exclusively to white people. . . .” 6  

  Grandfather Clauses .–Until quite recently, the history of the Fifteenth Amendment has been largely a record of belated judicial condemnation of various state efforts to disenfranchise African Americans either overtly through statutory enactment or covertly through inequitable administration of electoral laws and toleration of discriminatory membership practices of political parties. Of several devices which have been voided, one of the first to be held unconstitutional was the ”grandfather clause.” Beginning in 1895, several States enacted temporary laws whereby persons who had been voters, or descendants of those who had been voters, on January 1, 1867, could be registered notwithstanding their inability to meet any literacy requirement. Unable because of the date to avail themselves of the exemption, African Americans were disabled to vote on grounds of illiteracy or through discriminatory administration of literacy tests, while illiterate whites were permited to register without taking any tests. With the achievement of the intended result, most States permitted their laws to lapse, but Oklahoma’s grandfather clause had been enacted as a permanent amendment to the state constitution. A unanimous Court condemned the device as recreating and perpetuating ”the very conditions which the [Fifteenth] Amendment was intended to destroy.” 7  

The Court did not experience any difficulty in voiding a subsequent Oklahoma statute of 1916 which provided that all persons, except those who voted in 1914, who were qualified to vote in 1916 but who failed to register between April 30 and May 11, 1916, with some exceptions for sick and absent persons who were given an additional brief period to register, should be perpetually disenfranchised. The Fifteenth Amendment, Justice Frankfurter declared for the Court, nullified ”sophisticated as well as simple-minded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.” 8 The impermissible effect of the statute, said the Court, was automatically to continue as permanent voters, without their being obliged to register again, all white persons who were on registration lists in 1914 by virtue of the previously invalidated grandfather clause, whereas African Americans, prevented from registering by that clause, had been afforded only a 20-day registration opportunity to avoid permanent disenfranchisement.

  The White Primary .–Indecision was displayed by the Court, however, when it was called upon to deal with the exclusion of African Americans from participation in primary elections. 9 Prior to its becoming convinced that primary contests were in fact elections to which federal constitutional guarantees applied, 10 the Court had relied upon the equal protection clause to strike down the Texas White Primary Law 11 and a subsequent Texas statute which contributed to a like exclusion by limiting voting in primary elections to members of state political parties as determined by the central committees thereof. 12 When exclusion of African Americans was thereafter perpetuated by political parties not acting in obedience to any statutory command, this discrimination was for a time viewed as not constituting state action and therefore as not prohibited by either the Fourteenth or the Fifteenth Amendments. 13 This holding was reversed nine years later when the Court declared that where the selection of candidates for public office is entrusted by statute to political parties, a political party in making its selection at a primary election is a state agency, and hence it may not under the Fifteenth Amendment exclude African Americans from such elections. 14 An effort by South Carolina to escape the effects of this ruling by repealing all statutory provisions regulating primary elections and political organizations conducting them was nullified by a lower federal court with no doctrinal difficulty, 15 but the Supreme Court, although nearly unanimous on the result, was unable to come to a majority agreement with regard to the exclusion of African Americans by the Jaybird Association, a county-wide organization which, independently of state laws and the use of state election machinery or funds, nearly monopolized access to Democratic nomination for local offices. The exclusionary policy was held unconstitutional but there was no opinion of the Court. 16  

  Literacy Tests .–At an early date the Court held that literacy tests which are drafted so as to apply alike to all applicants for the voting franchise would be deemed to be fair on their face and in the absence of proof of discriminatory enforcement could not be said to deny equal protection. 17 But an Alabama constitutional amendment the legislative history of which disclosed that both its object and its intended administration were to disenfranchise African Americans was condemned as violative of the Fifteenth Amendment. 18  

  Racial Gerrymandering .–The Court’s series of decisions interpreting the equal protection clause as requiring the apportionment and districting of state legislatures solely on a population basis 19 had its beginning in Gomillion v. Lightfoot, 20 in which the Court found a Fifteenth Amendment violation in the redrawing of a municipal boundary line into a 28-sided figure which excluded from the city all but four or five of 400 African Americans but no whites, and which thereby continued white domination of municipal elections. Subsequent decisions, particularly concerning the validity of multi-member districting and alleged dilution of minority voting power, were decided under the equal protection clause, 21 and in City of Mobile v. Bolden, 22 in the course of a considerably divided decision with respect to the requirement of discriminatory motivation in Fifteenth Amendment cases, 23 a plurality of the Court sought to restrict the Fifteenth Amendment to cases in which there is official denial or abridgment of the right to register and vote, and to exclude indirect dilution claims. 24 Congressional amendment of Sec. 2 of the Voting Rights Act may obviate the further development of constitutional jurisprudence in this area, however. 25  

Footnotes

[Footnote 1] Supra, pp. 1926-27. Of course, the equal protection clause has been extensively utilized by the Court to protect the right to vote. Supra, pp. 1892-1911.

[Footnote 2] W. Gillette, The Right to Vote: Politics and the Passage of the Fifteenth Amendment 25-28 (1965).

[Footnote 3] Id. at 29-31; ch. 6, 14 Stat. 375 (1866) (District of Columbia); ch. 15, 14 Stat. 379 (1867) (territories); ch. 36, 14 Stat. 391 (1867) (admission of Nebraska to statehood upon condition of guaranteeing against racial qualifications in voting); ch. 153, 14 Stat. 428 (1867) (First Reconstruction Act).

[Footnote 4] Gillette, supra n., at 46-78. The congressional debate is conveniently collected in 1 B. Schwartz, Statutory History of the United States–Civil Rights 372 (1971).

[Footnote 5] United States v. Reese, 92 U.S. 214, 217 -18 (1876); United States v. Cruikshank, 92 U.S. 542, 566 (1876).

[Footnote 6] Ex parte Yarbrough, 110 U.S. 651, 665 (1884); Guinn v. United States 238 U.S. 347, 363 (1915). A state constitutional provision limiting the right of suffrage to whites was automatically nullified by ratification of the Fifteenth Amendment. Neal v. Delaware, 103 U.S. 370 (1881).

[Footnote 7] Guinn v. United States, 238 U.S. 347 (1915).

[Footnote 8] Lane v. Wilson, 307 U.S. 268, 275 (1939).

[Footnote 9] See also supra, p. 120.

[Footnote 10] United States v. Classic, 313 U.S. 299 (1941); Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 11] Nixon v. Herndon, 273 U.S. 536 (1927).

[Footnote 12] Nixon v. Condon, 286 U.S. 73 (1932).

[Footnote 13] Grovey v. Townsend, 295 U.S. 45 (1935).

[Footnote 14] Smith v. Allwright, 321 U.S. 649 (1944).

[Footnote 15] Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), cert. denied, 333 U.S. 875 (1948); see also Baskin v. Brown, 174 F.2d 391 (4th Cir. 1949).

[Footnote 16] Terry v. Adams, 345 U.S. 461 (1953). For an analysis of the opinions, see infra, p. 1945.

[Footnote 17] Williams v. Mississippi, 170 U.S. 213 (1898); cf. Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1960).

[Footnote 18] Davis v. Schnell, 81 F. Supp. 872 (M.D. Ala. 1949), aff’d 336 U.S. 933 (1949). On congressional action on literacy tests, see infra, pp. 1946-47.

[Footnote 19] Supra, pp. 1902-11.

[Footnote 20]   364 U.S. 339 (1960). See also Wright v. Rockefeller, 376 U.S. 52 (1964).

[Footnote 21] E.g., Whitcomb v. Chavis, 403 U.S. 124 (1971); White v. Regester, 412 U.S. 755 (1973).

[Footnote 22]   446 U.S. 55 (1980).

[Footnote 23] On the issue of motivation versus impact under the equal protection clause, see supra, pp. 1815-20. On the plurality’s view, see 446 U.S. at 61 -65. Justice White appears clearly to agree that purposeful discrimination is a necessary component of equal protection clause violation, and may have agreed as well that the same requirement applies under the Fifteenth Amendment. Id. at 94-103. Only Justice Marshall unambiguously adhered to the view that discriminatory effect is sufficient. Id. at 125. See also Beer v. United States, 425 U.S. 130, 146 -49 & nn.3-5 (1976) (dissenting).

[Footnote 24] Id. at 65. At least three Justices disagreed with this view and would apply the Fifteenth Amendment to vote dilution claims. Id. at 84 n.3 (Justice Stevens concurring), 102 (Justice White dissenting), 125-35 (Justice Marshall dissenting). The issue was reserved in Rogers v. Lodge, 458 U.S. 613, 619 n.6 (1982).

[Footnote 25] See Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, amending 42 U.S.C. Sec. 1973. The Supreme Court interpreted the 1982 amendments to section 2 in Thornburg v. Gingles, 478 U.S. 30 (1986), determining that Congress had effectively overruled the City of Mobile intent standard in returning to a ”totality of the circumstances” results test.

– See more at: http://constitution.findlaw.com/amendment15/annotation01.html#4

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Judge blocks warrantless searches of Oregon drug database

February 13, 2014 Leave a comment

(Reuters) – A federal judge ruled on Tuesday that U.S. government attempts to gather information from an Oregon state database of prescription drug records violates constitutional protections against unreasonable search and seizure.

 

The American Civil Liberties Union hailed the decision, in a case originally brought by the state of Oregon, as the first time a federal judge has ruled that patients have a reasonable expectation of privacy in their prescription records.

The ACLU had joined the lawsuit on behalf of four patients and a physician challenging U.S. Drug Enforcement Administration efforts to gain access, without prior court approval, to the state’s prescription database.

The Oregon Prescription Drug Monitoring Program database was created by the state legislature in 2009 as a tool for pharmacists and physicians to track prescriptions of certain classes of drugs under the federal Controlled Substances Act.

Some seven million prescription records are uploaded to the system every year, according to court documents.

The state mandated privacy protections for the data, including a requirement that law enforcement could only obtain information from the network with a warrant.

But the DEA claimed federal law allowed the government to access the database using only an “administrative subpoena”, which does not require a finding of probable cause for believing a crime has been committed or a judge’s approval.

U.S. District Judge Ancer Haggerty in Portland ruled that the DEA’s efforts to obtain Oregon’s prescription records without a warrant violate Fourth Amendment safeguards against searches and seizures of items or places in which a person has a reasonable expectation of privacy.

“It is more than reasonable for patients to believe that law enforcement agencies will not have unfettered access to their records,” Haggerty wrote in the summary judgment opinion.

“The prescription information maintained by (Oregon) is intensely private as it connects a person’s identity information with the prescription drugs they use,” Haggerty wrote.

(Reporting by Steve Gorman; Editing by Eric M. Johnson)

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Who gets to decide if someone can “plead the Fifth”?

February 13, 2014 Leave a comment

“The [New Jersey] Select Committee on Investigations voted on motions Monday that could force two recipients of subpoenas to comply with orders to produce documents.  The two recipients – Bridget Kelly and Bill Stepien, former top aides to Gov. Chris Christie – have refused to provide documents, citing their Fifth Amendment rights against self-incrimination.  The committee voted that the documents sought were ‘necessary, proper, and relevant.’ ”

 – Ted Mann, reporter for The Wall Street Journal, in a story February 10 about subpoenas issued by a state legislative committee looking into the closings of traffic lanes on the busy George Washington Bridge leading from New Jersey into New York, supposedly as a kind of political retaliation by the Christie administration.

“Ms. Kelly’s attorney, Michael Critchley, said that his client would contest the committee’s motion.  ‘We’ll let the court make a decision as to who’s right or wrong,’ he said.  Mr. Stepien’s lawyer, Kevin Marino, said he provided the committee ‘a detailed explanation’ of their ‘objections to the subpoena.’ ”

Reactions of lawyers, as quoted in the Ted Mann story.

WE CHECKED THE CONSTITUTION, AND…

The Fifth Amendment is one of the trickier parts of the Constitution’s Bill of Rights.  It says simply that a person may not be “compelled in any criminal case to be a witness against himself.”  But taking each of the most important words out of that, and saying with any confidence what they mean, can be a challenge to the most sophisticated legal mind.

In what forums does a witness have that protection?  What does a witness (or a lawyer for a witness) have to say in order to gain the protection?  What kind of coercion amounts to compulsion?  What kind of evidence would put the individual at risk of prosecution?  How does one know what would be “incriminating” – that is, proof of a crime?  Is the claim limited only to what a witness might say, or something that could be learned from such statements? Does it apply only to what is said verbally, or does it also cover records?  And straddling all of those is the larger question: Who gets to define the answers?

Because the right at issue is constitutionally guaranteed, neither a criminal prosecutor, nor a grand jury investigating potential crime, nor a state legislative committee conducting an investigation of suspected wrongdoing, gets to provide the final answers.

Of course, a prosecutor or an investigating committee can short-circuit a claim of the Fifth Amendment privilege by giving the individual involved a promise of immunity if they agree to testify or to hand over records.  But that means anything that is produced under such a promise  – or leads derived directly from it — cannot be used to prosecute that individual.  (Even so, a promise of immunity can itself be tricky, because it may not assure absolute immunity if some independent evidence of crime were found against that same individual.)

Sometimes, of course, prosecutors and investigators will give someone a promise of immunity, or at least a promise of leniency, if that person is willing to provide vital evidence against someone else.  The Fifth Amendment does not shield one from the cooperation of a friend, neighbor, colleague, or associate; you can only invoke the privilege for yourself.

What is most complicated about “pleading the Fifth” is claiming that protection to head off a demand for records.  It is by no means clear that, if records are not really the personal papers of a specific individual, that the individual can claim the privilege for those papers, even if their revelation would be incriminating.  Again, the privilege is a personal one, not one that goes with one’s position, let us say.

If prosecutors or investigators identify on their own a specific set of papers, or a kind of document, and they can show that it is not personal to the individual who possesses it, the likelihood is that the Fifth Amendment protection would not apply.    That could well be what the New Jersey investigators have done with documents that they think will tell them something about the scandal over the George Washington Bridge traffic lane closures.  They already know about e-mail exchanges, for example, and they perhaps can get by with demanding the disclosure of the rest of the “thread” in such exchanges – especially if the writers of the e-mails composed them voluntarily.

But prosecutors or investigators cannot go on what is called a “fishing expedition,” by requiring an individual who is targeted by their investigation to identify the papers that would respond to what the investigation’s goal is.  The Supreme Court has ruled explicitly that an individual can “claim the Fifth” against a demand that he or she find the responsive papers, identify them, and then hand them over.  That is called, technically, the “act of production” and it is protected from compulsion.

If a subpoenaed individual refuses explicitly to comply with a demand for documents, that can set up a confrontation that is likely to wind up in the courts.  The investigator may seek to have that individual held in contempt, but only if the claim of privilege is outside what the Fifth Amendment protects.  The investigator can refuse to acknowledge that a document would be incriminating (as the New Jersey committee seems to have concluded about some of the papers it had demanded), but cannot actually compel its production unless the claim of privilege is found wanting by a court.

The risk for the investigator, of course, is that a court may be convinced that the demanded papers do, indeed, reveal potential criminal conduct, that they are thus covered by the Fifth Amendment, and that the only way their turnover can be demanded is by a grant of immunity.  That then may be an opening for a negotiation: What does a witness or a prosecutor have to swap in exchange for getting the documents?

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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12th Amendment: Election of President and Vice President

February 12, 2014 Leave a comment

As part of the National Constitution Center’s 27 Amendments (In 27 Days) project, each day we will look at a constitutional amendment. Through partnerships with leading scholars and universities, government agencies, media outlets, and more, the National Constitution Center will profile one amendment each day throughout the month of February.

Aaron Burr (Wikimedia Commons from the New York Historical Society)

Aaron Burr (Wikimedia Commons from the New York Historical Society)

Full Text of the 12th Amendment

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted;—The person having the greatest Number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.

But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President—The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

Note: Words in italics indicate provisions that were later dropped from the Constitution.

Synopsis:

After the disputed election of 1800, this amendment required separate designation of presidential and vice presidential candidates, each of whom must meet the same qualifications for eligibility as the president. Source:  U.S. Senate

Explanation:

This Amendment, which supersedes clause 3 of Sec. 1 of Article II, was adopted so as to make impossible the situation occurring after the election of 1800 in which Jefferson and Burr received tie votes in the electoral college, thus throwing the selection of a President into the House of Representatives, despite the fact that the electors had intended Jefferson to be President and Burr to be Vice- President.
The difference between the procedure which it defines and that which was laid down originally is in the provision it makes for a separate designation by the electors of their choices for President and Vice-President, respectively. As a consequence of the disputed election of 1870, Congress has enacted a statute providing that if the vote of a State is not certified by the governor under seal, it shall not be counted unless both Houses of Congress concur. Source: Library of Congress

Resources:

1. The Library of Congress Constitution Annotated. Contains a detailed history of the amendments, along with past and recent court cases. Here is a link to the section on the 12th Amendment.

2. Cornell Legal Information Institute. Includes information from Wex, a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts.

Learn more about this project at the Constitution Center’s website at: constitutioncenter.org/experience/programs-initiatives/27-amendments-in-27-days/

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Constitution Check: What does it mean that there is a right to “bear” guns?

February 6, 2014 Leave a comment

Lyle Denniston looks at two Second Amendment cases under consideration at the Supreme Court later this month that would clarify questions posed by the National Rifle Association.

gunswide

THE STATEMENT AT ISSUE:

There is “a growing line of court of appeals decisions that, while stopping short of holding that there is no Second Amendment right outside the home, consistently reach the same result by deeming any right to bear arms in public to be, at best, outside the Second Amendment’s ‘core’ and then balancing it away under an anemic form of intermediate scrutiny.”

 – Charles J. Cooper, a Washington, D.C., attorney for the National Rifle Association, in a brief filed at the Supreme Court on Monday, urging the Justices to strike down a law that bans minors from carrying a handgun in public, beyond the home.

WE CHECKED THE CONSTITUTION, AND…

The Second Amendment, at its core, spells out not one, but two, rights when it protects “the right of the people.”  There is a right to “keep” a gun, there is a right, to “bear” a gun.  There is an “and” between the two in the text, so that might well be taken as a significant indication that these are separate rights.

The Supreme Court in 2008 made it clear that the right to “keep” a gun is a personal right, and that it means one has a right to keep a functioning firearm for self-defense within the home.   But it has refused repeatedly since then to take on the question of whether that right exists also outside the home.  If there is a separate right to “bear” a gun (and the Court, in fact, did say in 2008 that the two rights were separate), it has not said what that means.

The National Rifle Association, and some of its members, are now pressing the Supreme Court to answer that question.  They are doing so in two cases testing whether the federal government and the states can restrict the rights of minors to possess a gun outside the home.   The Court is expected to take its first look at those cases later this month, to decide whether it will hear either or both of them.   The federal government, once again, is urging the Court to bypass those cases, as it has done with perhaps a half-dozen others seeking clarification of the Second Amendment’s scope.

In a case from Texas, the NRA’s lawyers have reduced to elementary constitutional logic the question of what a right to “bear” guns means: “The explicit guarantee of the right to ‘bear’ arms would mean nothing,” the NRA’s filing argued, “if it did not protect the right to ‘bear’ arms outside of the home, where the Amendment already guarantees that they may be ‘kept.’   The most fundamental canons of construction forbid any interpretation that would discard this language as meaningless surplus.”

While the NRA and its lawyers are sharply critical of the lower federal courts for failing to explicitly extend the Second Amendment beyond the confines of one’s home, there have been a couple of breakthrough decisions doing just that.  For example, the Seventh U.S. Circuit Court of Appeals based in Chicago did so when it ruled unconstitutional an Illinois law banning the carrying of guns in public, at least when that was for the purpose of self-defense.  That decision had seemed headed for the Supreme Court, but the state legislature chose to eliminate the ban and the appeal prospect vanished.

The lower courts that have declined to enlarge the right have seemed to be convinced that it would be a bold step to do so, and some have suggested that it should be up to the Supreme Court to make the ultimate decision on that point.  The Court might be expected to step in to resolve the issue, if it were convinced that there is actually a true split on it among lower courts.

In the new NRA cases now awaiting the Justices’ attention, separate groups of judges on the Fifth U.S. Circuit Court of Appeals, based in New Orleans, rejected NRA challenges to the federal and state laws restricting minors’ access to guns.   The case involving the Texas law is explicitly about a right to carry a handgun in public, at least for minors.   In that state, they may own a handgun, but without a license to carry it in public – for which they are ineligible because of their age – they may have such a weapon only at home.

One of the reasons why the Justices might find the NRA challenges more appealing cases to review is that, in both, the federal appeals court came very close to creating an entirely new category of individuals ineligible to “bear” arms, merely because of their age.   In both of the decisions at issue, the appeals court said it was “likely” that they were not protected at all under the Second Amendment, or under the separate parts of the Constitution that guarantee all individuals equal legal rights.

If the Justices do agree to return to the ongoing controversy over the reach of the Second Amendment, it is probably too late in the current term to add that to the docket.  If granted review, it would very likely go over to the next term, starting in October.

Lyle Denniston is the National Constitution Center’s adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

 
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Fourth Amendment: Unreasonable Search and Seizure

February 5, 2014 Leave a comment

Fourth Amendment: Unreasonable Search and Seizure

By NCC Staff

As part of the National Constitution Center’s 27 Amendments (In 27 Days) project, each day we will look at a constitutional amendment. Through partnerships with leading scholars and universities, government agencies, media outlets, and more, the National Constitution Center will profile one amendment each day throughout the month of February.

Photo via Bruce Bortin/Flickr

Photo via Bruce Bortin/Flickr

Today, we look at an amendment that is seemingly in the news daily: the Fourth Amendment, which protects people from unreasonable searches and seizures.

Full Text of the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Synopsis:

Applying to arrests and to searches of persons, homes, and other private places, this amendment requires a warrant, thereby placing a neutral magistrate between the police and the citizen. Source:  U.S. Senate

Explanation:

This amendment protects the people’s right to be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures” by the government. The Framers of the Constitution were especially concerned about “general warrants” which authorized broad searches of innocent citizens private papers without “particularly describing the place to be searched, and the person or things to be seized.”

Today, an unreasonable search or seizure can involve a clear violation of private property rights, like the police entering someone’s home without a warrant supported by probable cause of wrongdoing, or can be subtler, like a police officer using a thermal imaging device to reveal excessive amounts of heat being generated inside a house.

Resources:

1. The Library of Congress Constitution Annotated. Contains a detailed history of the amendment, along with past and recent court cases.

2. Cornell Legal Information Institute.  Includes  information from Wex, a free legal dictionary and encyclopedia sponsored and hosted by the Legal Information Institute at the Cornell Law School. Wex entries are collaboratively created and edited by legal experts.

3. U.S. Courts website. This resource allows you to understand what Supreme Court decisions clarify reasonable search and seizure, apply the precedents, and see examples.

 
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